Case: 22-50872 Document: 00517056991 Page: 1 Date Filed: 02/06/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50872
FILED
February 6, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Shawn Malmquist,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:21-CR-48-12
______________________________
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Shawn Malmquist appeals from a guilty-plea conviction and sentence
of 151 months of imprisonment and four years of supervised release for
conspiracy to possess with intent to distribute 50 grams or more of
methamphetamine. On appeal, Malmquist contends that the Government
breached the clause of the plea agreement in which the Government
promised to recommend a three-level acceptance-of-responsibility
reduction. Malmquist argues that the Government’s opposition to the
reduction at sentencing constituted plain error because there is a reasonable
probability that, but for the breach, he would have received a lesser sentence,
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and the Government’s improper extraction of benefits from the agreement
resulted in a miscarriage of justice.
We conclude that the Government’s breach of the plea agreement
constituted plain error because the breach affected Malmquist’s substantial
rights and called into question the fairness, integrity, and public reputation of
the judicial proceedings. Therefore, we VACATE Malmquist’s sentence
and REMAND for resentencing.
I.
In July 2022, Malmquist pleaded guilty, pursuant to a plea agreement,
to one count of conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine. 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(B).
According to the presentence investigation report (“PSR”), Malmquist was
part of an Austin, Texas-based methamphetamine-trafficking organization.
He was one of 33 participants charged in this conspiracy and was identified
as being a drug distributor.
In April 2021, an initial hearing was held to address the Government’s
application for pretrial detention. The magistrate judge denied the
Government’s request in part and pronounced that Malmquist would be
detained only until there was availability in an inpatient residential drug
treatment program. In May 2021, Malmquist was released on bond following
a detention hearing and scheduled to enter an inpatient residential drug
treatment program within approximately one week, subject to mandated
conditions of pretrial release. Malmquist successfully completed that
residential program in July 2021.
On March 31, 2022, however, a pretrial-services officer filed a petition
to modify the conditions of pretrial release following Malmquist’s
submission of two positive drug tests. When confronted with these results,
Malmquist eventually admitted to using methamphetamine prior to these
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drug tests. In the petition, the officer also recounted Malmquist’s successful
completion of the residential drug treatment program, the reduction in
mandated counseling sessions per month due to his progress, and
Malmquist’s active participation in the treatment sessions. Although, as
noted, such violations could have resulted in the revocation of his pretrial
release, the officer recommended that Malmquist increase the number of
individual counseling sessions and random drug tests. The magistrate judge
and Government concurred with these modifications.
Approximately six weeks later, on May 10, 2022, Malmquist was
arrested after being found in possession of methamphetamine following a
traffic stop during his mandated curfew. He was detained in a local jail in
Williamson County. The pretrial-services officer filed a petition for an arrest
warrant and the revocation of Malmquist’s pretrial release the following day,
and the warrant was issued thereafter. Malmquist remained in Williamson
County custody until he was transferred to federal custody pursuant to a writ
on July 5, 2022.
On July 1, 2022—after Malmquist’s arrest for possession of
methamphetamine and while he was still in custody in Williamson County—
Malmquist and the Government entered into a written plea agreement. As
part of this agreement, the Government guaranteed—as relevant here—that
it would “recommend that [Malmquist] receive a three level downward
adjustment for acceptance of responsibility.” In the agreement, Malmquist
waived his right to appeal and to collaterally challenge his conviction and
sentence. Also in the agreement, Malmquist further confirmed that he
understood that his breach of the terms of the plea agreement would release
the Government from its obligations.
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On July 6, 2022, the magistrate judge revoked Malmquist’s pretrial
release and ordered that he be detained pending further proceedings. The
Government did not appear at this proceeding.
Later that afternoon, Malmquist pleaded guilty, pursuant to his
written plea agreement, to the underlying offense before the magistrate
judge. As recommended by the magistrate judge, the district court accepted
the guilty plea.
The PSR assessed a total offense level of 30, and a criminal history
category of VI. The probation officer determined that an acceptance-of-responsibility reduction under U.S. Sentencing Guidelines § 3E1.1 was not
applicable due to Malmquist’s “noncompliance issues” and bond
revocation. The advisory guidelines range was 168 to 210 months of
imprisonment, with a statutory minimum of five years of imprisonment.
In the “Offender Characteristics” section, the probation officer
stated that Malmquist’s “methamphetamine dependency has proven to be a
common issue during his adult life, as the frequency of his methamphetamine
consumption correlates to his involvement with serious criminal conduct.”
The officer added, as was consistent with the pretrial-services officer’s
petition to modify pretrial release conditions, that “[p]rior to [the]
noncompliance issues [while on pretrial release], [Malmquist] was making
significant progress towards his treatment goals, as he remained sober and
continued with counseling.”
Defense counsel filed objections to the PSR and argued, inter alia, that
a three-level § 3E1.1 acceptance-of-responsibility reduction was applicable
because Malmquist “plead[ed] guilty promptly and . . . never denied guilt of
the charged offense.” In response, the probation officer contended that a
reduction was not applicable due to Malmquist’s behavior “while on pretrial
release and prior to his guilty plea,” specifically the positive drug tests and
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possession of methamphetamine. The Government did not object to the PSR
or submit a response to Malmquist’s objections.
At sentencing, defense counsel’s argument as to the § 3E1.1 reduction
was that he “believe[d] that [Malmquist] did accept responsibility.” At this
point, the Government countered:
As to the objection as to whether or not the acceptance
of responsibility points should be awarded, again, the pretrial
services officer got this right, Your Honor. . . . Mr. Malmquist
and his family told [the magistrate judge] he [could] be good.
He [could] behave himself while he’s out on pretrial release.
We’ll put him in a program. We’ll make sure that he does what
he’s supposed to do. Mr. Malmquist told [the magistrate
judge] that he could abide by the conditions that she set for
him. Put him into a program. And, as you can see from the
presentence report, he failed out of that program. Twice he
tested positive for methamphetamine.
More importantly, the court gave him one more chance
and said, You know what? I’m going to let you stay out as long
as you agree that you won’t violate the law any longer. What
did Mr. Malmquist do? Went out and scored more
methamphetamine. This time it was 50 grams. Again, that’s a
distribution amount, Your Honor.
Mr. Malmquist has not learned a single lesson in the
time that he was first arrested in April of 2021 until he was reincarcerated. If he had stayed in jail, we wouldn’t be talking
about the acceptance of responsibility points. Instead, Mr.
Malmquist made that decision and the pretrial services officer
got this correct.
Defense counsel responded that the acceptance-of-responsibility reduction
was applicable because Malmquist admitted his guilt and “[i]f there[ was]
any delay, that ha[d] to do with discovery review and the volume of calls in
this case.”
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The district court overruled defense counsel’s objections and
announced its decision:
Defendants usually get acceptance of responsibility.
And I think [the Government] is correct when [it] says that if
this defendant had remained in jail, we wouldn’t be talking
about the three points for acceptance of responsibility right
now. But we are because this defendant appeared in front of a
magistrate judge and a magistrate judge conducted a hearing.
It was represented to the magistrate judge that the defendant
understood the situation, he was released on bond, knowing
what would happen if he reverted to the use of drugs.
I’m highly sympathetic to his situation and I do believe
that he should get drug treatment, but I find he is not entitled
to acceptance of responsibility, because after those
representations, he went back to at least the use of drugs, and
perhaps due to the quantities, might have distributed some or
might not. I do not make a finding that he did, but he violated
the representations to the court with regard to use and
proximity of drugs and he is not entitled to the acceptance of
responsibility.
Defense counsel made no further objection.
The parties then made their final arguments. Defense counsel
requested a sentence of “less than 100 months,” which he calculated to be
the “average” of the sentences imposed for the codefendants to date. The
Government stated that a sentence “at the low end of the guideline range
[was] appropriate.”
After several of Malmquist’s family members made statements of
support, the district court adopted the PSR, and pronounced its sentencing
determination. It acknowledged that it had reviewed the plea agreement,
considered the underlying facts, listened to Malmquist’s letter of apology and
family members, and reviewed Malmquist’s personal background. The court
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confirmed that it was “willing to accept the fact that [Malmquist’s
involvement in the drug-trafficking organization] was due to [his] drug
addiction,” because it thought that he had “an extreme drug addiction,” but
his addiction “in no way lessen[ed]” his role in the offense because many of
the codefendants had drug addictions as well. Further, the court stated that
it would impose a sentence that was “more accurate with regard to other
[defendants] that [it had] sentenced in this case in an attempt to balance
everybody out.”
During its explanation, the district court discussed the acceptance-of-responsibility reduction on several occasions. It stated that when Malmquist
was “given a chance where [he] could have gotten some time down under the
guidelines for acceptance of responsibility, [he] violated that.” The court
then pronounced:
[The court] find[s] that the difference between what guidelines
would have come up with had you satisfied your pretrial release
and gotten credit for acceptance of responsibility and the
guidelines that [the court is] applying today is more harsh [sic]
than it needs to be. It was too great a penalty there.
The court elaborated that it would impose a sentence “somewhat below the
guideline range” which was “more of an appropriate penalty because of
[Malmquist’s] violation of [the] terms of pretrial release.”
Having considered the 18 U.S.C. § 3553(a) sentencing factors, the
district court imposed a below-guidelines sentence of 151 months of
imprisonment and four years of supervised release. Again, addressing the
acceptance-of-responsibility reduction, the court clarified that it would not
give Malmquist credit for the time he spent in custody in Williamson County
“because of [the] court’s policy,” and that this was “yet another penalty
[Malmquist was] suffering because [he] couldn’t make good on” the pretrial
release conditions. There were no further objections.
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Malmquist timely filed a pro se notice of appeal on the grounds of (1)
prosecutorial misconduct resulting from the Government’s breach of the
plea agreement “openly in court,” and (2) ineffective assistance resulting
from defense counsel’s failure to object to the breach. See Fed. R. App. P.
4(b)(1)(A).
II.
We have jurisdiction over Malmquist’s appeal under 18 U.S.C. § 3742
and
28 U.S.C. § 1291. As a preliminary matter, an appellate waiver provision
does not bar a plea-agreement-breach claim because the Government’s
breach “void[s] the plea agreement (including the defendant’s waiver of
appeal).” United States v. Keresztury,
293 F.3d 750, 756 (5th Cir. 2002); see
United States v. Cluff,
857 F.3d 292, 297 (5th Cir. 2017) (considering the
defendant’s argument, despite the appeal waiver, that the Government
breached the plea agreement by not recommending an acceptance-of-responsibility adjustment); United States v. Gonzalez,
309 F.3d 882, 886 (5th
Cir. 2002) (“[W]here the government has breached . . . a plea agreement, the
defendant is necessarily released from an appeal waiver provision contained
therein.”).
Generally, a claim that the Government breached a plea agreement is
reviewed de novo. Cluff, 857 F.3d at 297. However, Malmquist failed to
preserve his prosecutorial-misconduct-and-Government-breach objection in
the district court, so we review his breach claim for plain error. See Puckett v.
United States,
556 U.S. 129, 133-34, 138 (2009); United States v. Williams,
821
F.3d 656, 657 (5th Cir. 2016). To succeed on plain-error review, a defendant
must demonstrate that (1) there is an error “that has not been intentionally
relinquished or abandoned”; (2) “the legal error must be clear or obvious,
rather than subject to reasonable dispute”; and (3) “the error must have
affected [his] substantial rights.” Williams,
821 F.3d at 657 (internal
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quotation marks and citation omitted). Even if the defendant makes this
showing, we have discretion to correct the error “only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks, brackets, and citation omitted).
III.
Malmquist argues that the Government breached the plea agreement
by advocating for the denial of the three-level acceptance-of-responsibility
reduction despite having explicitly guaranteed that it would recommend such
a reduction in the plea agreement. Although it failed to do so in its brief, the
Government acknowledged at oral argument that it committed clear error by
breaching the plea agreement. See Oral Argument at 13:47-53; Keresztury,
293 F.3d at 756; United States v. Munoz,
408 F.3d 222, 226 (5th Cir. 2005);
United States v. Kirkland,
851 F.3d 499, 503 (5th Cir. 2017).
IV.
Because the Government breached Malmquist’s plea agreement,
“[t]he first two plain-error factors are clearly met,” and therefore the crux of
this appeal concerns the third and fourth factors. Williams, 821 F.3d at 658.
On appeal, Malmquist argues that the breach “affected [his] substantial
rights because there is a reasonable probability that, but for the breach, he
would have received a lesser sentence through a three-level downward
adjustment.” Malmquist further asserts that the Government’s breach
affected the fairness, integrity, and public reputation of the judicial
proceedings because he “surrender[ed] . . . numerous [c]onstitutional
rights” in exchange for the Government’s promise and the Government
“extract[ed] benefits” having already known about Malmquist’s postindictment violative acts.
The Government counters that Malmquist cannot demonstrate that it
was “reasonably likely [that he would have] receive[d] an acceptance-of-
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responsibility reduction regardless of any breach.” Further, it asserts that
“[g]iven the court’s decision to sentence [him] outside the guideline range,
Malmquist has not shown it was reasonably likely that the district court
would have imposed a different sentence even if it had reduced his offense
level for acceptance of responsibility.” As to the fourth prong, the
Government argues that because Malmquist “did not cease his life of crime”
after his indictment, the reputation of the judicial proceedings is not at issue.
Puckett, 556 U.S. at 143.
A.
In the sentencing context, “[a]n error affects an appellant’s
substantial rights when there is a reasonable probability that, but for the error,
he would have received a lesser sentence.” Williams, 821 F.3d at 657-58
(internal quotation marks and citation omitted). Specifically, “[t]he
Government’s breach of its promise to recommend a lesser sentence affects
a defendant’s substantial rights unless the record indicates that . . . the
district court would have imposed the same sentence regardless of the
Government’s breach.” Kirkland,
851 F.3d at 503. A defendant’s
substantial rights are affected when “[t]here is no indication the district court
would have been unmoved by the Government’s recommendation.”
Williams,
821 F.3d at 658. This standard reflects both the “reasonable
probability” showing required of the defendant and “the common sense
understanding of the important role the Government’s recommendation
plays in sentencing.” Kirkland,
851 F.3d at 503.
There is an additional inquiry where, as here, the Government “did
not merely remain silent,” but rather “aggressively argued” for the opposite
of what was promised in the plea agreement. Id. at 504. Under those
circumstances, we “must consider not only the possibility that the district
court would have been influenced” had the Government made the promised
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recommendation, “but also the possibility that the district court was
influenced by the Government’s recommendation of, and argument for,” the
opposite of what was promised. Id. (emphasis omitted). If the record
indicates that “the district court may have been influenced not only by the
Government’s recommendation, but also by [the] Government’s passionate
emphasis of aggravating factors in support of that recommendation,” it
cannot be said that the sentence would have been the same absent the breach.
Id. at 504-05.
The Government contends that it did not “aggressively argue[]”
against the acceptance-of-responsibility reduction, id. at 504, but merely
“endors[ed] the recommendation of court staff.” However, the
Government actively opposed the reduction and made several misstatements
at sentencing. Malmquist did not “fail[] out of [the] program” as the
Government alleged, but rather successfully completed the court-ordered
residential drug treatment program in July 2021 and then made progress in
the outpatient services such that he was rewarded in February 2022 with a
decrease in the frequency of the mandated counseling sessions. The
Government’s assertion that Malmquist had “not learned a single lesson”
since he was first arrested discounted these successes. When Malmquist first
violated the terms of his pretrial release, it was not only the magistrate judge
who gave him “one more chance,” as the Government claimed. Rather, the
pretrial-services officer was the one who made that suggestion and the
Government concurred. The Government concluded at the sentencing
hearing by stating that the parties “wouldn’t be talking about the acceptance
of responsibility points” had Malmquist “stayed in jail” and not made the
decision to violate his pretrial release terms, when in fact the Government
had agreed to recommend “a three level downward adjustment for
acceptance of responsibility” after it was already aware of Malmquist’s arrest
for possession of methamphetamine in Williamson County.
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It is reasonably likely that, but for the Government’s breach, the
district court would have imposed a lesser sentence. See id. at 503-05. First,
the district court’s expressed hesitancy in denying the reduction
demonstrates that there is a “possibility that the district court would have
been influenced” by the Government’s recommendation for an acceptance-of-responsibility reduction and, further, that there is a “possibility that the
district court was influenced” by the Government’s “passionate emphasis of
aggravating factors” in its advocacy to deny the reduction.
Id. at 504-05
(emphasis omitted). When announcing its decision concerning the § 3E1.1
reduction, the court began by stating that “[d]efendants usually get
acceptance of responsibility” but that the Government was “correct” that
the reduction would not even be a discussion during this proceeding had
Malmquist “remained in jail.” That determination rested on a
misrepresentation by the Government.
Next, when addressing Malmquist’s criminal history, the court
acknowledged that “he could have gotten some time down under the
guidelines” had Malmquist not “violated” the “chance” he was given.
Again, this statement may have been colored by the Government’s advocacy
against the acceptance-of-responsibility reduction and its inaccurate
characterization of Malmquist’s conduct on pretrial release. The court then
declared that the resulting guidelines range, as it had been calculated without
the credit for acceptance of responsibility, was “harsh[er] than it need[ed] to
be” and “too great a penalty.” Accordingly, the court imposed a below-guidelines sentence, in part, to give a “more appropriate penalty” despite
Malmquist’s violation of his pretrial release. The district court’s explanation
here undermines the Government’s argument that the outcome, regardless
of the breach, was inevitable.
Moreover, the court’s emphasis on Malmquist’s drug addiction
further suggests that the Government’s support for the reduction may have
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been influential. The Government’s post-violation promise to recommend
the reduction may have indicated to the district court that weight should be
given to Malmquist’s history of successes with substance-abuse treatment,
which showed his initial progress toward “withdraw[ing] from criminal
conduct.” U.S. Sent’g Guidelines Manual § 3E1.1 cmt. n.1(B)
(U.S. Sent’g Comm’n 2023) [hereinafter “U.S.S.G.”].
It is true, as the Government urges, that Malmquist engaged in postindictment conduct to warrant the denial of an acceptance-of-responsibility
reduction based on a finding that he had not “withdr[awn] from criminal
conduct after being charged in the pending offense.” United States v. Franks,
46 F.3d 402, 406 (5th Cir. 1995) (per curiam) (citing U.S.S.G. § 3E1.1 cmt.
n.1(B)) (affirming the denial of an offense-level reduction where the
defendant’s possession of ammunition and drugs while on bond pending the
disposition of his case indicated continued involvement in criminal conduct);
see United States v. Puckett,
505 F.3d 377, 387 (5th Cir. 2007), aff’d in part,
556 U.S. 129 (2009). The Government asserts that because of this conduct,
Malmquist would not have obtained the § 3E1.1 reduction regardless of the
Government’s breach.
The Government relies on the Supreme Court’s decision in Puckett
and this court’s decision in United States v. Hinojosa, 749 F.3d 407 (5th Cir.
2014), cases in which the denials of the acceptance-of-responsibility
reduction were affirmed because the courts found that the circumstances
demonstrated it was “likely [that the defendant] would not have obtained
[the] benefits [of the plea agreement] in any event,” regardless of any breach.
Hinojosa,
749 F.3d at 414 (quoting Puckett,
556 U.S. at 142). However, both
cases are distinguishable. In Puckett, the Government agreed in the plea
agreement that the defendant qualified for an acceptance-of-responsibility
reduction and later opposed that reduction because the defendant committed
another crime after the plea agreement was executed. See
556 U.S. at 131-32.
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In Hinojosa, as here, the Government was aware of the defendant’s postindictment misconduct when it promised to recommend an acceptance-of-responsibility reduction. 749 F.3d at 414. However, the Government’s
promise in Hinojosa “was conditioned on [the defendant] ‘clearly
demonstrat[ing] his acceptance of responsibility,’”
id., but here, the
Government’s promise to recommend the reduction was unconditional, see
And in Hinojosa, this court did not ultimately determine whether the
Government’s conduct constituted a breach of the plea agreement,
id. at 414,
whereas here, the breach is undisputed.
Moreover, in neither case did the district court express sympathy for
the defendant’s underlying issues that led to the criminal conduct, nor state
that the denial of the reduction was particularly harsh, as occurred here. To
the contrary, in Puckett and Hinojosa, the district court denied the reduction
without hesitation and with solely negative comments. See Puckett, 556 U.S.
at 132 (quoting the district court’s observation that “it’s so rare as to be
unknown around here where one has committed a crime subsequent to the
crime for which they appear before the court and for them even then to get
the three points” (alterations omitted)); Hinojosa,
749 F.3d at 414 (noting
that the district court found the defendant’s “credibility so lacking that it was
‘suspicious of any word out of his mouth’”).
Finally, the Government asserts that “Malmquist has not shown it
was reasonably likely that the district court would have imposed a different
sentence even if it had reduced his offense level for acceptance of
responsibility.” But the district court’s comments at sentencing cut against
this argument. The 151-month sentence was 17 months less than the bottom
of the advisory guidelines range of 168 to 210 months of imprisonment. Had
the three-level reduction been applied, the resulting advisory guidelines
range would have been 130 to 162 months of imprisonment. See U.S.S.G.
ch.5, pt. A (sentencing table). Under that range, 151 months would have been
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21 months above the bottom of the range and closer to the high end of the
range. Thus, because “[t]here is no indication the district court would have
been unmoved by the Government’s recommendation,” Williams, 821 F.3d
at 658, there is a reasonable probability that the court would not have imposed
the same sentence had the Government fulfilled its promise by affirmatively
advocating for the acceptance-of-responsibility reduction.
B.
The fourth prong of the plain-error analysis is determined “on a casespecific and fact-intensive basis.” Kirkland, 851 F.3d at 505 (quoting Puckett,
556 U.S. at 142). However, there is a “rebuttable presumption that the
Government’s meaningful breach of a plea agreement satisfies [this] prong.”
Id.; see Williams,
821 F.3d at 658; Munoz,
408 F.3d at 226. A breach
“constitutes a particularly egregious error” and there is an “inherent
unfairness involved in the Government’s inducement of the defendant’s
waiver of important constitutional rights by making promises that it
ultimately does not keep.” Kirkland,
851 F.3d at 505-06. As of 2022, the
Government resolved approximately 98% of federal convictions by securing
guilty-plea confessions. See Mark Motivans, U.S. Dep’t Just.,
Off. Just. Programs, Federal Justice Statistics, 2022, at 11
(2024), https://bjs.ojp.gov/document/fjs22.pdf [https://perma.cc/WDH3-
ZQAH] (dividing the percentage of guilty-plea convictions by the total
percentage of convictions). Put otherwise, plea bargaining, necessarily
outside of judicial purview, see Fed. R. Crim. P. 11(c)(1), is our criminal
justice system. It is therefore imperative that the Government honor its
word.
Nevertheless, the Supreme Court has held that the Government can
rebut the miscarriage presumption where a defendant “obviously [does] not
cease his life of crime” and where “receipt of a sentencing reduction for
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acceptance of responsibility would [be] so ludicrous as itself to compromise
the public reputation of judicial proceedings.” Puckett, 556 U.S. at 143
(emphasis omitted).
Here, the government has failed to rebut the presumption that its
breach affected the fairness, integrity, and public reputation of the judicial
proceedings. Again, unlike in Puckett, the Government was aware of
Malmquist’s violation before it signed the plea agreement. See Kirkland, 851
F.3d at 506 (“The Government cannot extract benefits from a defendant who
it knows has committed bad acts and later argue that it should not be held to
its bargain because the defendant has committed those bad acts.”); cf.
Puckett,
556 U.S. at 132 (recounting that the Government had agreed to
support an acceptance-of-responsibility reduction “‘a long time ago,’ before
[the defendant] had engaged in the additional criminal behavior” (citation
omitted)). Additionally, unlike the defendant in Puckett, who exhibited no
behavior suggesting any “withdrawal from criminal conduct” prior to
sentencing, U.S.S.G. § 3E1.1 cmt. n.1(B), Malmquist had a history of
successes with substance-abuse treatment, which the Government
discounted in its sentencing advocacy against the acceptance-of-responsibility reduction. For these reasons, the Government has not
rebutted the presumption that its breach constituted a “miscarriage of
justice,” Kirkland,
851 F.3d at 505, and Malmquist has therefore satisfied the
fourth prong.
V.
Because the Government’s breach of the plea agreement constituted
plain error, we VACATE Malmquist’s sentence and REMAND for
resentencing.
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